Appellant Robert Joe Riggs filed suit on May 11, 1954 against F. E. Bartlett, a general contractor, and Dallas Brick & Lumber Company, a copartnership composed of A. Ross Frank and John R. Noble.
The cause of action against Bartlett was for damages for breach of an oral contract, entered into March 1, 1952, whereby Bartlett allegedly agreed to build a house at cost not to exceed $9,590 on a lot owned by appellant Riggs.
The cause of action asserted against Dallas Brick & Lumber Company was for cancellation of a deed on the grounds of fraud and duress. Appellant and his wife on December 8, 1952 had executed the deed to the house and lot in settlement of the claim of Dallas Brick & Lumber Company, who had threatened to foreclose a note and mechanic's lien in the amount of $11,450 against the property. It was not alleged or claimed by appellant Riggs that Dallas Brick & Lumber Company was a party to the oral contract between Riggs and Bartlett, or had knowledge of said contract at the time the note and mechanic's lien, originally payable to Bartlett, was transferred and assigned to Dallas Brick & Lumber Company.
Bartlett, though served with citation, failed to answer, and on July 29, 1954 an interlocutory judgment by default was entered against him. This interlocutory judgment was not proved up until February 26, 1957; therefore did not become final against Bartlett until said last named date.
Dallas Brick & Lumber Company filed an answer to appellant's suit, and filed also a cross-action in trespass to try title, based on the warranty deed of Riggs and wife, dated December 8, 1952. A motion for summary judgment on its cross-action was filed by Dallas Brick & Lumber Company, and on August 19, 1955 said motion was sustained. Accordingly on the same day judgment was entered in favor of Dallas Brick & Lumber Company for title and possession of the property in question.
This is appellant's second attempt to appeal from the summary judgment in favor of Dallas Brick & Lumber Company. We dismissed the first appeal on the ground that the appeal bond was filed too late. Riggs v. Bartlett, Tex.Civ.App., 286 S.W.2d 669.
Appellant filed his appeal bond for the present appeal on March 11, 1957. This bond obviously was not timely filed if we compute the time from August 19, 1955, the date of the summary judgment in favor of Dallas Brick & Lumber Company; but it was well within the time allowed for the filing of an appeal bond if we compute the time from February 26, 1957, the date when final judgment was entered against F. E. Bartlett. Appellant now takes the position that his earlier effort to appeal was premature, and that his present appeal is timely since all parties to the suit were not disposed of until February 26, 1957 when he proved up his action for damages for breach of contract against F. E. Bartlett. F. E. Bartlett has not appealed.
Following the filing on March 11, 1957 of appellant's appeal bond in this second appeal, appellee Dallas Brick & Lumber Company filed its motion to dismiss this appeal, which motion we overruled. However in connection with the appeal on the merits, appellee has renewed its motion to dismiss the appeal, and we must first pass on the renewed motion.
After reconsideration we have reached the conclusion that appellee's motion to dismiss the present appeal must be sustained. The cause of action alleged by appellant Riggs against Bartlett is entirely different, independent, and severable from the cause of action alleged by appellant against appellee Dallas Brick & Lumber Company. We repeat: appellant's action against Bartlett was for damages for breach of an oral contract in which Bartlett had agreed to build a house for appellant at a cost not to exceed $9,590. Appellant's action against appellee Dallas Brick & Lumber Company was for cancellation of a warranty deed because of alleged fraud and duress; and appellee's cross-action on which judgment was rendered was in trespass to try title based on the deed from appellant.
Bartlett was not a party to appellee's cross-action. He was not affected by it in any way; nor was appellant's claim against Bartlett affected by the cross-action of appellee. If appellant had a good cause of action against Bartlett for breach of contract because Bartlett failed to build a house at the cost he orally agreed to, appellant was free to pursue his remedy for damages against Bartlett notwithstanding the judgment in favor of appellee Dallas Brick & Lumber Company for title and possession. In fact appellant now has his judgment against Bartlett, and that judgment will not be disturbed on this appeal.
Since the judgment rendered against F. E. Bartlett on February 26, 1957 was in an independent action severable from the action in which the summary judgment was rendered in favor of appellee Dallas Brick & Lumber Company on August 19, 1955, we hold that the latter was a final appealable judgment as of August 19, 1955. Bateman v. Carter-Jones Drilling Co., Tex.Civ.App., 290 S.W.2d 366; Harred v. Conrad, Tex.Civ.App., 287 S.W.2d 229; Richards v. Smith, Tex.Civ.App., 239 S.W.2d 724. It follows that since appellant's second appeal bond was not filed until March 11, 1957, it was filed too late to give this Court jurisdiction of the appeal. The motion of appellee Dallas Brick & Lumber Company to dismiss the appeal is sustained.
Ordinarily we would conclude our opinion with the above holding. However, because of the circumstances presented by the record, we feel it is not inappropriate for us to say that had we reached the appeal on its merits we would have felt impelled to affirm the trial court's summary judgment.
Appellant admitted the execution by himself and his wife of the warranty deed conveying title to appellee. Put simply: appellee was entitled to recover on its trespass to try title action unless the warranty deed be set aside. ...